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Do unlawfully residing migrants have a right to
housing under the European Social Charter?
Ekaterina Baliuki
June 2015
ELSA International Essay Competition on Social Rights i i
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LIST OF ABBREVIATIONS
CFREU Charter of Fundamental Rights of the European Union
Charter European Social Charter
CoE Council of Europe
DCI Defence for Children International
ECHR European Convention on Human Rights
ECSR European Committee on Social Rights
ECtHR European Court of Human Rights
ERRC European Roma Rights Centre
EU European Union
FEANTSA European Federation of National Organisations Working with the Homeless
FIDH International Federation of Human Rights Leagues
ICCPR International Covenant on Civil and Political Rights
ICESCR International Covenant on Economic, Social and Cultural Rights
ICJ International Court of Justice
MS Member State(s)
PICUM Platform for International Cooperation on Undocumented Migrants
TFEU Treaty on the Functioning of the European Union
UDHR Universal Declaration of Human Rights
UNCESCR United Nations Committee on Economic, Social and Cultural Rights
VCLT Vienna Convention on the Law of Treaties
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I. INTRODUCTION
Nowadays the world is confronted with a long-standing phenomenon of an illegal
migration. During the last several years this problem has increased in size and intensity. The
reason is a denial of social rights during wars in Africa, Syria and Libya, as well as economic and
political prerequisites.1 Europe has a settled reputation of being a primary destination of flow of
more than 4.5 million illegal migrants, 2 i.e. undocumented or irregular.3 For the purposes of this
paper irregular migrants are defined as people that have crossed a border without a proper
authorization.4 As a result of this process, a housing crisis stroke into a great State’s responsibility
to provide all people with the dwelling. This lied upon two main European organisations, the
Council of Europe (CoE) and the European Union (EU). Should they fail in their duties,
tomorrow we would face with people conventionally sleeping on the streets in a way larger
numbers than now it is.
This paper aims to decide upon a major legal question arising from this situation: do
irregular migrants “can come out of the shadows and get right with the law”?5 This legal problem
will be tackled by exploring the irregular migrants’ status, which predetermines their social rights
enshrined in the European Social Charter (Charter), in its original or revised forms, to which
every European Union Member State (MS) is a party. The extent of rights granted to
undocumented migrants will be analyzed in accordance with the Charter and international law.
After outlining of the scope inherent to the right to housing, the essay intends to determine the
legality of granting this right to irregular migrants. To achieve the result, the analysis relies on the
customary interpretative techniques of the Vienna Convention on the Law of Treaties (VCLT).
Then, the mechanism of realization of this right will be addressed, where States are obliged to
respect principles of non-discrimination and prevention of homelessness. The supposed
outcome of the present analysis is to show that undocumented migrants enjoy the right to
housing under the Charter and to articulate a mechanism of this right’s realization.
1 Beatrice Credi, “How many people have entered the EU via illegal border crossings?” (2015) Welfare Society Territory; 2 Commissioner for Human Rights, The Human Rights of Irregular Migrants in Europe, .CommDH/Issue Paper (2007) 1. 3 PICUM, Strategies to End Double Violence Against Undocumented Women Protecting Rights and Ensuring Justice, Report (2012), p.11. 4 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, adopted by General Assembly resolution 45/158 of 18 December 1990, Art.5. 5 President Barack Obama, Remarks by the President in Address to the Nation on Immigration, the White House, (2014). Available at https://www.whitehouse.gov/the-press-office/2014/11/20/remarks-president-address-nation-immigration
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II. ARGUMENTATION
A. The right to housing under Article 31 of the European Social Charter
This section will examine the concept of the right to housing, which is defined in Article
31 of the Revised Charter as follows:
“With a view to ensuring the effective exercise of the right to housing, the Parties
undertake to take measures designed:
1. to promote access to housing of an adequate standard;
2. to prevent and reduce homelessness with a view to its gradual elimination;
3. to make the price of housing accessible to those without adequate resources.”6
Also, Articles 16, 19 (4) (c), 30 of the Charter are of relevance, emphasizing the right to
family housing and providing housing as such to avoid poverty and social exclusion respectively.7
Being an international treaty between states, the Charter should be interpreted according to
the rules contained in the VCLT. Where necessary, they are applied as customary law,8 since the
Original Charter was adopted in 1961, before the entry into force of the VCLT. Consequently,
the Charter provisions are to be understood in good faith in the light of ordinary meaning of
terms, its object and purpose,9 which is “to give life to the fundamental social rights”10 and
according to a current state of the international law.11 Furthermore, subsequent practice of the
MS is necessary for interpretation of each treaty.12 The goal in the present essay is to determine
whether we can conceive of a new notion of the right to housing applicable to irregular migrants
that falls within Article 31 of the Revised Charter.
1. Ordinary meaning of the term “housing”
According to the ordinary meaning, housing is a habitation with all basic amenities, such as
water, heating, waste disposal, sanitation facilities, electricity, etc.13 This notion of “housing” is
6 European Social Charter (Revised), Strasbourg, 3.V.1996, ETS No. 163 (Charter (Revised)), Art.31. 7 European Social Charter, Turin, 18.X.1961, ETS No. 35 (Charter), Art.16,19(4)(c),30. 8Advisory Opinion Concerning Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory [2004] I.C.J. para.94 9 ECSR, OMCT v. Ireland, Complaint No. 18/2003, Decision on the Merits [2004], para.60; Peter Malanczuk, Akehurst’s Modern Introduction to International Law, ed.7, Routledge (2002), p.367. 10 ECSR, FIDH v. France, Complaint No. 14/2003 Decision on the Merits [2004], CoE, para.29. Available at http://www.coe.int/t/dghl/monitoring/socialcharter/Complaints/CC14Merits_en.pdf 11 ECSR, FEANTSA v. the Netherlands, Complaint No. 86/2012, Decision on the Merits [2014], CoE (FEANTSA v. the Netherlands), para.45. 12 VCLT, 1155 UNTS 33.1., adopted 23 May 1969, Art. 31 (1),(3). 13 ECSR, Conclusions 2003, France; ECSR, ERRC v. Bulgaria, Complaint No. 31/2005, Decision on the Merits [2006], CoE (ECSR, ERRC v. Bulgaria), para.34; UNCESCR, General Comment No. 12: The Right to Adequate Food (Art.11)UN Doc. E/C.12/1999/5,paras. 8-13. Available at http://www.refworld.org/docid/4538838c11.html
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primarily defined by national law.14 The necessary features of this residence are accessibility,
social security, cultural adequacy, availability of services, materials, health requirements,15 legal
security of tenure,16 facilities and infrastructure, affordability, and appropriate location that
underlines adequacy of the housing.17 However, in some cases one could provide with temporary
shelter that has a lower threshold of conformity than adequate housing, as it must satisfy only
the basic amenities as well as security of the proximate surroundings.18 Yet, supplying temporary
shelter as such is not satisfactory.19
2. Is a limited scope of the European Social Charter consistent with its
object and purpose? The right to housing as of fundamental importance
to everyone is a clue to a puzzle
Advocates of the narrowed reading of Article 31 state that irregular migrants do not prima
facie enjoy the right to housing.20 Their assertions are based on the Appendix to the Charter
conferring this right only upon lawfully residing migrants.21 However, the direct examination of
the context of Article 31 yields more interesting results. The provision does not explicitly
mention subjects of the right to housing. However, the Charter incorporated the right of
everyone to housing in the Part I that fortified aims of this treaty. In this vein, we could argue a
contrario that if drafters had intended to limit subjects of this right, they would have included it in
the Charter ad verbatim.
Even more importantly, the understanding of the Charter provisions as entitling only
lawful migrants to a right to adequate housing contradicts the object and purpose of the Charter.
This treaty calls upon cooperation between its members to give rise to the realization of the
fundamental principles and ideals to facilitate social progress.22 The object and purpose of a
14 Charter (Revised), Explanatory report, CoE, para.119. Available at http://conventions.coe.int/Treaty/EN/Reports/HTML/163.htm 15 Charter (Revised), Explanatory Report, CoE, para.118. 16 ECSR, ERRC v. Italy, Complaint No 27/2004, Decision on the Merits [2005], CoE (ECSR, ERRC v. Italy), para.35; ECSR, Conclusions 2003, France; ECSR, ERRC v. Greece, Complaint No 15/2003, decision on the Merits [2004], CoE (ECSR, ERRC v. Greece), para.24. 17 UNCESCR, General Comment No. 4: The Right to Adequate Housing (Art.11(1) of the Covenant) UN. Doc. E/1992/23, annex III (UNCESCR: The Right to Adequate Housing), para.8; ECSR, ERRC v. Portugal, Complaint No 61/2010, Decision on the Merits [2011], CoE, para.41. 18 ECSR, DCI v. the Netherlands, Complaint No. 47/2008, Decision on the Merits [2009], CoE (ECSR, DCI v. the Netherlands), para.62. 19 ECSR, Conclusions 2003, Italy. 20 ECSR, ERRC v. France, Complaint No. 51/2008, Decision on the merits [2009], CoE (ECSR, ERRC v. France), para.111. 21 Charter (Revised), Appendix, para.1. 22 Charter, Preamble.
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treaty is “the most important [obligatory] part of the treaty’s context”23 that does not allow
anyone to interpret the treaty in order to achieve own aims.24 Furthermore, by virtue of their
jurisprudence the ECtHR and the ECSR broadly interpreted the Charter25 establishing an
indirect right of migrants to a minimum standard of living including health, work, education and
adequate housing.26
An apparent erga omnes character of this right builds a bridge between the right to housing
and what the object and purpose of the Charter reflects. Moreover, since these judicial and quasi-
judicial bodies assume the huge importance of this right,27 and the MS should also respect it
outside the Charter due to the erga omnes character of the right concerned. In its landmark
Barcelona Traction case, the International Court of Justice (ICJ) explained the concept of erga omnes
obligations, which means existence of rights where “all States have a legal interest in their
protection”.28 The Court stated that basic human rights fall within this concept.29 For instance,
those rights can be found in the Universal Declaration of Human Rights (UDHR), the
cornerstone in human rights law.30 In particular, this document manifests the right of everyone
to the adequate standard of living including housing.31 Its preamble proclaims the universal
respect for these rights that set up “common standard of achievement for all peoples and all
nations”.32 The Charter of the United Nations, an organisation promoting human rights and
friendly relations,33 and the ICESCR confirm the same universal nature for the fundamental
freedoms.34
23 Iran-United States Claims Tribunal, Federal Reserve Bank of New York v. Bank Markazi, Decision No. DEC 130-A28-FT [2000], para.58. 24 Oliver Dörr, Kirsten Schmalenbach, Vienna Convention on the Law of Treaties: A Commentary (Springer H.D. London NY) (2011), pp.545,547. 25 ECSR, DCI v. Belgium, Complaint No. 69/2012, Decision on the Merits [2012], CoE (ESCR, DCI v. Belgium), paras.28, 35. 26 Yannis Ktistakis, Protecting Migrants under the European Convention on Human Rights and the European Social Charter a handbook for legal practitioners, CoE (2013) (Yannis: Protecting Migrants), p. 47. 27 Compilation of Selected Adjudication on Housing Rights, UN Housing Rights Programme, Report No. 4, 3rd ed. (2006), p.117; UNCESCR, General Comment No. 4: The Right to Adequate Housing (Art.11(1) of the Covenant) UN Doc. 13/12/91 (1991), para.1. 28 Case Concerning the Barcelona Traction, Light and Power Company Limited (Belgium v Spain) (Merits, Judgment) [1970] I.C.J. Rep 6 (ICJ, Barcelona Traction), para.33. 29 ICJ, Barcelona Traction case, para.34. 30 Malcolm N. Shaw, International Law, Cambridge University Press, 7th ed. (2014), pp.203,204,216; IIias Bantekas, Lutz Oette, International Human Rights Law and Practice, Cambridge University Press (2013), p.20. 31 UDHR, adopted by General Assembly resolution 217 A (III) of 10 December 1948, Art. 25(1). 32 UDHR, Preamble; The Committee of Ministers of the Council of Europe, Recommendation No. R (2000) 3 of the Committee of Ministers to member states on the Right to the Satisfaction of Basic Material Needs of Persons in Situations of Extreme Hardship, adopted at the 694th meeting of the Ministers' Deputies, CoE (The Committee of Ministers: Recommendation No. R (2000) 3) 33 PICUM, Using Legal Strategies to Enforce Undocumented Migrants’ Human Rights, Report (2013), p.32.
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Moreover, as stated by the ESCR in DCI v. the Netherlands, a state may not deprive those
not falling within the ambit of the Appendix of their rights linked to life and dignity under the
Revised Charter,35 even in the case of economic crisis.36 If a link with life and dignity is
established for the right concerned, it becomes fundamental.37 Apart from the mentioned basic
rights, the disputed one “cannot be isolated from other fundamental principles” contained in the
ICCPR, the ICESCR and other instruments,38 where the CFREU is of a separate importance.
Under this treaty the MS may not apply provisions in an arbitrarily restrictive or negative way in
case of human rights’ enjoyment,39 thus undocumented migrants are granted all fundamental
freedoms. Correspondingly, the right to housing is the erga omnes obligation meaning that the MS
should respect this right in any case while we apply the limited scope of the Charter’s Appendix.
To this end, the protection under the Charter “should not end up having unreasonably
detrimental effects where the protection of vulnerable groups of persons is at stake”.40 Thus,
approach to restrict the Charter contradicts its object and purpose, a vital tool in treaty
interpretation. Given that the right to housing is a “right to live somewhere in security, peace and
dignity”41 and that the Charter is silent on the status of irregular migrants, we could argue for an
expansive reading of Article 31, where undocumented migrants are entitled to the dwelling.
B. Enforcement of the right to adequate housing under the European Social
Charter
So far, the focus of the present analysis has been on the enjoyment of the right to housing
by irregular migrants. The next legal issue to consider is the enforcement of this right by the
State parties to the Charter as a good indicator of subsequent practice, being relevant for both
interpretation of the Charter and real implementation of state’s obligations. 34 Charter of the United Nations, 1 UNTS XVI, adopted at 24 October 1945, , Preamble; International Covenant on Economic Social and Cultural Rights, 993 UNTS 3., adopted by General Assembly resolution 2200A (XXI) of 16 December 1966 (ICESCR), Preamble; Vienna Declaration, World Conference on Human Rights, UN Doc. A/CONF 157/24 (1993), Preamble, paras.1,5,8; Human Rights Committee, General Comment 31, Nature of the General Legal Obligation on States Parties to the Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add.13 (2004), para.2. 35 ESCR, DCI v. the Netherlands, paras. 32,47; ECSR, COHRE v. Italy, Complaint No. 58/2009, Decision on the Merits, [2010], CoE, para.33; The Committee of Ministers: Recommendation No. R (2000) 3 36 ECSR, FEANTSA v. the Netherlands, para.128; UNCESCR, General Comment 2 (1990) (E/1990/23), annex III, para.9. 37 ECSR, FIDH v. France, Complaint No. 14/2003, Decision on the merits [2004], para.30. 38 TFEU, 2012/C 326/01 adopted at 26 October 2012, Art. 151 (1); CFREU, O.J. (2010/C 83/02), adopted at 30 March 2010, Art. 1, 34(3 ). 39 CFREU, Art.53, Preamble. 40 ECSR, DCI v. the Netherlands, paras.37,38; ECSR, FIDH v. France, para.30. 41 DCI v. Belgium, para.35; Raquel Rolnik, UN Special Rapporteur on adequate housing, Right to Adequate Housing, (2010), p.21.
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The MS are obliged to undertake the full realization of the right to adequate housing
through international and national co-operation based on free consent.42 This is a compulsory
principle of a “progressive realization” for the people within the MS’ jurisdiction.43 Although the
means of complying with this obligation may vary, the MS must undertake all necessary steps to
reach that purpose; 44 particularly adopt a constitutionally entrenched national housing strategy.45
For example, the constitution of the Federal Republic of Germany upheld the inherent principle
of non-discrimination in the granting fundamental rights,46 thus confirms a foundation for
supply of adequate housing. However, in Spain constitutionally guaranteed right to housing47 in
reality just creates lack of affordable one.48 But in a larger sense, each constitution is a basis for a
whole legal framework of the MS, consequently a non-compliance with the obligation to provide
dwelling is unacceptable.
Notwithstanding, a “retrogression in housing rights would constitute a human rights
violation”.49 In this respect, in its Additional Protocol, the Charter confers upon the MS and
international non-governmental organisations a collective right of petition for adequate
reparation to the ECSR50 overseeing implementation of its provisions.
1. Case law of the European Court of Human Rights
Even if we apply the restrictive wording of the Charter in case of granting the illegal
migrants social rights, one would prefer the practice of the ECHtR. This Court aims to
implement the provisions of the ECHR, within which the undocumented migrants fall, because 42 Charter (Revised), Art.11, 19(3); ICESCR, Art.2(1); International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, adopted by General Assembly resolution 2200A (XXI) of 16 December 1966 (ICCPR), Art.2(2); Message of his Holiness Pope Francis for the 101st World Day of migrants and refugees (2015); The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights, UN Doc. E/CN.4/1987/17 (1986). 43 ICESCR, Art. 2(1) ECSR, International Movement ATD Fourth World v. France, Complaint No. 33/2006, Decision on the Merits [2007], CoE, para.59. 44 ECSR, ERRC v. France, para.47; ECSR, ERRC v. Bulgaria, para.35. 45 Ben Saul, David Kinley, Jaqueline Mowbray, The International Covenant on Economic, Social and Cultural Rights: Commentary, Cases and Materials, OUP Oxford (2014), p.932. 46 Basic Law for the Federal Republic of Germany, promulgated by the Parliamentary Council on 23 May 1949, Art. 1(2); 3(3). 47 The Spanish Constitution, passed by the Cortes Generales in Plenary Meetings of the Congress of Deputies and the Senate held on October 31, 1978, Art. 47; The Belgian Constitution, updated following the sixth institutional reform (constitutional revisions of 6 January 2014 – Belgian Official Gazette of 31 January 2014), Belgian House of Representatives, Art.23. 48 PICUM, Housing and Homelessness of Undocumented Migrants in Europe: Developing Strategies and good practices to ensure access to housing and shelter, Report (2014) (PICUM: Housing and Homelessness of Undocumented Migrants), p.11. 49 Commissioner for Human Rights, Housing Rights: The Duty to Ensure Housing for All, CommDH/IssuePaper (2008) 1; Philip Alston, Gerard Quinn, The Nature and Scope of States Parties Obligations under ICESCR, (1987) pp.156-229. 50 Additional Protocol to the European Social Charter Providing for a System of Collective Complaints, Strasbourg, 9.XI.1995, ETS No. 158, Preamble, Art.1,2.
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the Convention prohibits discrimination on any status, and also ECHtR’s judgments are “legally
binding for the MS”.51
The relevant case law of the ECHtR concerns violations of Article 3 of the ECHR that
prohibits inhuman or degrading treatment including insufficient access to shelter.52 The Court
found it in the M.S.S. v Belgium and Greece case where an asylum seeker lived in extreme poverty
whilst waiting for his asylum procedure to be completed.53 However, the case law of the ECtHR
on undocumented migrants sometimes is not of avail. In the case of Ahmed v Austria the Court
ruled that alleged deportation of the applicant would violate Article 3 of the ECHR.54 Applicant
stayed in Austria without definite status and access to social rights, which led him to a suicide.55
It follows that in practice both the Charter and ECHR are not very helpful and despite
that these treaties are a huge step towards respect for irregular migrants’ dignity, the right to
housing is still inaccessible to the fullest extent.
2. Means of discrimination – Legal justifications?
The Charter explicitly states the principle of de facto56 non-discrimination in the enjoyment
of the rights on “any ground, including other status.”57 The UNCESCR emphasized that a
decline in living and housing conditions, attributable to the MS in the absence of compensatory
measures, is inconsistent with the mentioned obligation for all categories of people.58
Correspondingly, there must be no de jure or de facto restrictions on home-buying, housing aids
and loans.59
However, the right to adequate housing as it is settled by the treaties differs from that in
reality,60 where irregular migrants are deprived of health and well-being due to the illegality of
51PICUM, Using Legal Strategies to Enforce Undocumented Migrants’ Human Rights (2013), p.23. 52 Convention for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS, ETS 5, Rome, 4. XI. 1950 (ECHR), Art.3; PICUM, Using Legal Strategies to Enforce Undocumented Migrants’ Human Rights (2013), p.23. 53 European Court of Human Rights, M.S.S. v. Belgium and Greece (Application no. 30696/09) Judgment [2011], paras.235,254,360,368. 54 European Court of Human Rights, Case of Ahmed v. Austria (Application no. 25964/94) Judgment [1996], para.47. 55 PICUM, Using Legal Strategies to Enforce Undocumented Migrants’ Human Rights (2013), p.25. 56 European Social Charter – European Committee of Social Rights – Conclusions XIX-4/2011, CoE (2013), p.167. 57 Charter (Revised), Art.E; International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, adopted by General Assembly resolution 45/158 of 18 December 1990, Art.7; International Convention on the Elimination of All Forms of Racial Discrimination, adopted by General Assembly resolution 2106 (XX) of 21 December 1965, Preamble, Art.5; ICCPR, Art.26; Parliamentary Assembly, Human rights of irregular migrants, PACE Doc. 10924 (2006); para.12.18. Available at http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=17456&lang=EN 58 UNCESCR: The Right to Adequate Housing, para.11. 59 ECSR, Conclusions 2004, Norway; ECSR, Conclusions 2003, Italy. 60 UNCESCR: The Right to Adequate Housing, para.4.
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their presence.61 Such MS as France, Greece, Italy and some others did not comply with the
obligation to provide sufficient supply of social housing62 and prohibition of discrimination.63 In
Slovenia, one of the conditions for being eligible for social housing is a requirement to
permanently reside in the area where the house is located.64 The additional violations of Article
31 of the Revised Charter are caused by housing outside urban areas or near facilities that create
unpleasant conditions, such as “electric transformers or very busy roads”,65 and failure to build
housing.66 Up to date, a problem of Roma migrants has been unresolved.67 Thousands of families
continue to live in inadequate housing conditions68 both in Italy and Greece because the
Governments have failed to supply Roma with adequate housing.69 In this regard, Roma suffered
forced evictions even without access to alternative accommodation.70 It flows that the ECSR
recognized breaches by Italy of the EU Race Equality Directive and violations of these States
obligations under the Charter.71 However, Ireland established the Irish Human Rights and
Equality Commission, an independent statutory body for the real implementation of human
rights, particularly in the Roma migrants’ case.72
Such practice actually has emphasized a failure to avoid discrimination in the light of
granting the right to housing. Any inconsideration towards these obstacles would sum up to
prevailing harming strategies under the values of a democratic society.
3. Are States obliged to prevent homelessness?
Increased costs and poor conditions of housing create homelessness among irregular
migrants,73 which is a great problem in contemporary Europe.74 The 2020 EU Strategy proclaims
61 Ryszard Cholewinski, Irregular migrants: access to minimum social right, CoE (2005), p.9. 62 ECSR, FEANTSA v. France, Complaint No. 39/2006, Decision on the Merits, 5 December [2007], CoE (ECSR, FEANTSA v. France), paras.78,81; ECSR, ERRC v. Greece, paras.42,46; ECSR, ERRC v. France, para.88. 63 PICUM: Housing and Homelessness of Undocumented Migrants, p.11. 64 Dr. Ne�a Kogovšek Salamon, Report on Measures to Combat Discrimination Directives 2000/43/EC and 2000/78/EC, Country Report on Slovenia (2013), p.53. 65 Thomas Hammarberg, Memorandum following his visit to France from 21 to 23 May 2008, CommDH(2008)34 (2008), para.132; ECSR, ERRC v France, paras.49,50. 66 ECSR, FEANTSA v. France, para.115. 67 Roma in SEE, PAIRS SEE, South East Europe Transnational Cooperation Programme, EU. 68 Amnesty International, Rome Continues to Deny Adequate Housing to Roma, Press Release 30th of October 2013. 69 Amnesty International, Annual Report (Italy) 2014/15. Available at https://www.amnesty.org/en/countries/europe-and-central-asia/italy/report-italy/. 70 Amnesty International, Annual Report (Italy) 2014/15 71 ECSR, ERRC v. Italy, paras.12,13; ECSR, ERRC v. Greece, paras 46,47. 72 Ireland, Strategic Social Report (2015), p.10. 73 PICUM: Housing and Homelessness of Undocumented Migrants), p.4. 74 FEANTSA Press Release 2.9.2005.
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a fight against poverty, social exclusion as well as discrimination.75 In this respect, MS are
required to prevent homelessness,76 thus “to provide shelter as long as the undocumented
migrants are under their jurisdiction and unable to provide housing for themselves”.77 This raises
the issue of forced evictions, which have been defined as the “deprivation of housing for
insolvency or wrongful occupation”.78 One way of achieving this is to find alternative housing or
support financially.79 However, permanent alternative housing is not granted within the meaning
of Article 31 (1) to migrants in irregular situation80
Currently, the ECSR observed the following in the 2012 FEANTSA v. the Netherlands
complaint where the respondent state by legislation violated the right to housing of the
undocumented migrants by insufficient access to shelter, its poor quality and quantity.81 The
Netherlands refused to grant them housing while illegally staying and referred to the
Government’s desire to forcibly expel irregular migrants from the State.82 In Denmark, public
shelters are inaccessible, thus irregular migrants survive on the streets.83 But instead of providing
support the Government assumes that if migrants are not assisted they will leave the country
which is ineffective and even creates homelessness additionally.84
In this regard, although the States undertake measures to prevent homelessness the threat
and existence of abuse are extremely high. Thus, the real implementation of this international
obligation should continue to reach sustainable development of MS through national and
international cooperation.
III. CONCLUSION
The outlined background of the migration problem has shown that its solution is
extremely vital for the interests of thousands of migrants, for the interests of the MS and the EU
as a whole. Yet, the present analysis has indicated that it is not easy to find an answer as to
whether undocumented migrants are entitled to the right to housing.
75 European Comission, Communication from the Commission Europe 2020 A strategy for smart, sustainable and inclusive growth (2010), p.5,19. 76 Charter (Revised), Art.31(2). 77 Yannis: Protecting Migrants, p.51. 78 ECSR, Conclusions 2003, Sweden. 79 Yannis: Protecting Migrants, p.51. 80 ECSR, DCI v. the Netherlands, para.63. 81 ECSR, FEANTSA v. the Netherlands, paras 2,18,47,75,82,83. 82 ECSR, FEANTSA v. the Netherlands, para.159. 83 PICUM: Housing and Homelessness of Undocumented Migrants, p.16. 84 PICUM: Housing and Homelessness of Undocumented Migrants, p.16.
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A thorough interpretation of the Charter is a key to the solution of this issue. However, a
strict adherence to the general rules of interpretation under the VCLT yields only limited results
that do not satisfy the illegal migrants’ needs. This gap in their legal status could be filled by
virtue of a broad understanding of the Charter’s applicability to them. Unsurprisingly, the MS do
not follow this idea to the fullest extent, as it might be contrary to the currently pursued policy.
Of course, if we grant the undocumented migrants the housing, an influx of people will be
inescapable. The consequences are vague. The mere fact that the MS can act unilaterally to
perform their absolute sovereignty,85 could lead to massive abuses, which is not a welcomed
outcome of the solution either.
There are still ways for illegal migrants to claim the right to housing under the European
Social Charter. As a corollary, of its purported “erga omnes” character being pivotal for legal
analysis, the right to housing belongs to everyone irrespective of any status implying impossibility
to limit subjects of this right. However, it is hard to tell that all MS respect this principle of non-
discrimination in the supply of social housing. Once again, it is tough to predict how states will
respond to the call for regulation. While a scrutiny shows a possible legality of such claims, only
the following steps will assure a likelihood of their enforcement in practice:
⎯ amending of the Charter by explicit fixation of the undocumented migrants’ rights;
⎯ adoption of protective housing strategies in line with the proposed reading of the Charter
at national level by the MS and corresponding guarantees for the persons concerned.
In any event, given the current legal framework the MS are cautious to implement different
notion of the right to housing even despite obligations under the Charter.
85 Asylum case (Colombia/Peru), Dissenting Opinion of Judge Alvarez, (Judgment) [1950] I.C.J. Rep. 266, p.28.
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INTERNATIONAL AGREEMENTS
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7
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7
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9
International Convention on the Protection of the Rights of All Migrant Workers
and Members of Their Families, adopted by General Assembly resolution 45/158
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3, 9
Vienna Convention on the Law of Treaties, 1155 UNTS 33. 1, adopted 23 May
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4
International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, adopted
by General Assembly resolution 2200A (XXI) of 16 December 1966.
8, 9
International Covenant on Economic Social and Cultural Rights, 993 UNTS 3.,
adopted by General Assembly resolution 2200A (XXI) of 16 December 1966.
7, 8
International Convention on the Elimination of All Forms of Racial
Discrimination, adopted by General Assembly resolution 2106 (XX) of 21
December 1965.
9
European Social Charter, Turin, ETS No. 35, 18.X.1961. 4, 6
Convention for the Protection of Human Rights and Fundamental Freedoms, 213
UNTS, ETS 5, Rome, 4. XI. 1950.
Charter of the United Nations, 1 UNTS XVI, adopted at 24 October 1945. 7
CONSTITUTIONS OF THE MEMBER STATES
The Belgian Constitution, updated following the sixth institutional reform
(constitutional revisions of 6 January 2014 – Belgian Official Gazette of 31
January 2014), Belgian House of Representatives.
8
The Spanish Constitution, passed by the Cortes Generales in Plenary Meetings of 8
14
the Congress of Deputies and the Senate held on October 31, 1978.
Basic Law for the Federal Republic of Germany, promulgated by the
Parliamentary Council on 23 May 1949.
8
BOOKS
Ben Saul, David Kinley, Jaqueline Mowbray, The International Covenant on Economic,
Social and Cultural Rights: Commentary, Cases and Materials, OUP Oxford (2014).
8
Iiias Bantekas, Lutz Oette, International Human Rights Law and Practice, Cambridge
University Press (2013).
6
Malcolm N. Shaw, International Law, Cambridge University Press, 7th ed. (2014). 6
Oliver Dörr, Kirsten Schmalenbach, Vienna Convention on the Law of Treaties: A
Commentary (Springer H.D. London NY) (2011).
6
Peter Malanczuk, Akehurst’s Modern Introduction to International Law, ed.7, Routledge
(2002).
4
Ryszard Cholewinski, Irregular migrants: access to minimum social rights, CoE (2005). 10
Yannis Ktistakis, Protecting Migrants under the European Convention on Human Rights and
the European Social Charter a handbook for legal practitioners, CoE (2013).
6, 11
EUROPEAN COMMITTEE ON SOCIAL RIGHTS CASES & DOCUMENTS
ECSR, FEANTSA v. the Netherlands, Complaint No. 86/2012, Decision on the
Merits [2014], CoE.
4, 7, 11
ECSR, DCI v. Belgium, Complaint No. 69/2012, Decision on the Merits [2012],
CoE.
6, 7
ECSR, ERRC v. Portugal, Complaint No 61/2010, Decision on the Merits [2011],
CoE.
5
ECSR, COHRE v. Italy, Complaint No. 58/2009, Decision on the Merits, [2010],
CoE.
7
ECSR, DCI v. the Netherlands, Complaint No. 47/2008, Decision on the Merits
[2009], CoE.
5, 7, 11
ECSR, ERRC v. France, Complaint No. 51/2008, Decision on the merits [2009],
CoE.
5, 8, 10
ECSR, FEANTSA v. France, Complaint No. 39/2006, Decision on the Merits, 5 10
15
December [2007], CoE.
ECSR, International Movement ATD Fourth World v. France, Complaint No. 33/2006,
Decision on the Merits [2007], CoE.
8
ECSR, ERRC v. Bulgaria, Complaint No. 31/2005, Decision on the Merits [2006],
CoE.
4, 8
ECSR, ERRC v. Italy, Complaint No 27/2004, Decision on the Merits [2005],
CoE.
5, 10
ECSR, Conclusions 2004, Norway. 9
ECSR, FIDH v. France, Complaint No. 14/2003, Decision on the Merits [2004],
CoE.
4, 7
ECSR, ERRC v. Greece, Complaint No 15/2003, Decision on the Merits [2004],
CoE.
5, 10
ECSR, OMCT v. Ireland, Complaint No. 18/2003, Decision on the Merits [2004],
CoE.
4
ECSR, Conclusions 2003, France. 4, 5
ECSR, Conclusions 2003, Italy. 5, 9
ECSR, Conclusions 2003, Sweden. 11
OTHER INTERNATIONAL CASES
European Court of Human Rights, M.S.S. v. Belgium and Greece (Application no.
30696/09) Judgment [2011].
9
Advisory Opinion Concerning Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territory [2004] I.C.J. Rep 15.
4
Iran-United States Claims Tribunal, Federal Reserve Bank of New York v. Bank
Markazi, Decision No. DEC 130-A28-FT [2000].
6
European Court of Human Rights, Case of Ahmed v. Austria (Application no.
25964/94) Judgment [1996].
9
Case Concerning the Barcelona Traction, Light and Power Company Limited (Belgium v Spain)
(Merits, Judgment) [1970] I.C.J. Rep 6 .
6
Asylum case (Colombia/Peru), Dissenting Opinion of Judge Alvarez, (Judgment)
[1950] I.C.J. Rep. 266.
12
16
UNITED NATIONS DOCUMENTS
Raquel Rolnik, UN Special Rapporteur on adequate housing, Right to Adequate
Housing, (2010).
7
Compilation of Selected Adjudication on Housing Rights, UN Housing Rights
Programme, Report No. 4, 3rd ed. (2006).
6
Human Rights Committee, General Comment 31, Nature of the General Legal
Obligation on States Parties to the Covenant, U.N. Doc.
CCPR/C/21/Rev.1/Add.13 (2004).
7
UNCESCR, General Comment No. 12: The Right to Adequate Food (Art.11) UN
Doc. E/C.12/1999/5.
4
Vienna Declaration, World Conference on Human Rights, UN Doc. A/CONF
157/24 (1993).
7
UNCESCR, General Comment No. 4: The Right to Adequate Housing (Art.11(1)
of the Covenant) UN. Doc. E/1992/23, annex III.
5
UNCESCR, General Comment No. 4: The Right to Adequate Housing (Art.11(1)
of the Covenant) UN Doc. 13/12/91 (1991).
6
UNCESCR, General Comment 2 (1990) (E/1990/23), annex III. 7
The Limburg Principles on the Implementation of the International Covenant on
Economic, Social and Cultural Rights, UN Doc. E/CN.4/1987/17 (1986).
8
Universal Declaration of Human Rights, adopted by General Assembly resolution
217 A (III) of 10 December 1948.
6
MISCELLANEOUS
Amnesty International, Annual Report (Italy) 2014/15. 10
Amnesty International, Rome Continues to Deny Adequate Housing to Roma,
Press Release 30th of October 2013.
10
Beatrice Credi, “How many people have entered the EU via illegal border
crossings?” (2015) Welfare Society Territory; Global Commission on International
Migration, Migration in an interconnected world: new directions for action (2005).
3
Commissioner for Human Rights, Housing Rights: The Duty to Ensure Housing
for All, CommDH/IssuePaper (2008) 1.
8
17
Commissioner for Human Rights, The Human Rights of Irregular Migrants in
Europe, .CommDH/Issue Paper (2007) 1.
3
European Social Charter – European Committee of Social Rights – Conclusions
XIX-4/2011, CoE (2013).
9
Dr. Ne�a Kogovšek Salamon, Report on Measures to Combat Discrimination
Directives 2000/43/EC and 2000/78/EC, Country Report on Slovenia (2013).
10
European Commission, Communication from the Commission Europe 2020 A
strategy for smart, sustainable and inclusive growth (2010).
11
European Social Charter (Revised), Explanatory report, CoE. 5
FEANTSA Press Release 2.9.2005. 11
Ireland, Strategic Social Report (2015). 10
Message of his Holiness Pope Francis for the 101st World Day of migrants and
refugees (2015).
8
Parliamentary Assembly, Human rights of irregular migrants, PACE Doc. 10924
(2006).
9
Philip Alston, Gerard Quinn, The Nature and Scope of States Parties Obligations under
ICESCR, (1987).
8
PICUM, Housing and Homelessness of Undocumented Migrants in Europe: Developing
Strategies and good practices to ensure access to housing and shelter, Report (2014).
8, 10, 11
PICUM, Strategies to End Double Violence Against Undocumented Women Protecting Rights
and Ensuring Justice, Report (2012).
3
PICUM, Using Legal Strategies to Enforce Undocumented Migrants’ Human Rights, Report
(2013).
7, 9
President Barack Obama, Remarks by the President in Address to the Nation on
Immigration, the White House, (2014).
3
Roma in SEE, PAIRS SEE, South East Europe Transnational Cooperation
Programme, EU.
10
The Committee of Ministers of the Council of Europe, Recommendation No. R
(2000) 3 of the Committee of Ministers to member states on the Right to the
Satisfaction of Basic Material Needs of Persons in Situations of Extreme
Hardship, adopted at the 694th meeting of the Ministers' Deputies, CoE.
6, 7
Thomas Hammarberg, Memorandum following his visit to France from 21 to 23
May 2008, CommDH(2008)34 (2008).
10
18
i The responsibility for the information and views set out in the reports lies entirely with the author. ii The Panel of Experts that assessed the submissions to the competition were the following: Annalisa Ciampi (University of Verona), Francesco Costamagna (University oá Turin), Donata Gottardi (University of Verona) Giovanni Guiglia (University of Verona), Lorenza Mola (University of Turin), Claudio Panzera (Mediterranea University of Reggio Calabria), Neliana Rodean (University of Verona), Evelyne Schmid (University of Bern), Gregor T. Chatton (Swiss Federal Supreme Court), Jaume Saura Estapa (University of Barcelona), Mercedes Fernández (Universidad Pontificia Comillas), Joaquín Eguren (Universidad Pontificia Comillas), Cristina Cortázar (Universidad Pontificia Comillas), José Luis Rey (Universidad Pontificia Comillas), Anders Narvestad (University of Oslo), Azin Tadjdini (University of Oslo), Johan Leiss (University of Oslo), Marit Frogner (Labour Court of Norway), Benedita Mac Crorie (University of Minho) and Tiago Fidalgo De Freitas (University of Lisbon).